IN THE SUPREME COURT OF BRITISH COLUMBIA

Transcription

1 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Between: And British Columbia v. Adamson, 2016 BCSC 584 Date: Docket: Registry: Victoria Her Majesty The Queen in right of the Province of British Columbia, and The Attorney General of British Columbia Plaintiffs Hugh Adamson, Donna Aumbus, Ollie Aux, Adam Baker, Michael (Magnus) Bjornson, Christine Brett, Shane Enns, Jorge Gome, Russell Lloyd-Jones, Sean M. Manley, Audrey Moffatt, Carl Montgomery, Rose Mullin, Kristel Oertel, Chris Parent, AmanDa Paska, Ricky Perreault, Joseph Reville, Andrea Robinson, Vincent Robinson, Norman Ruble, Rathborne Smallwood, Dough Swait, William Wale, Mitchell Wallace, Jane Doe, John Doe and Other Unknown Persons Defendants Restriction on publication: By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as [M.G.] may not be published, broadcasted, or transmitted in any manner. Before: The Honourable Chief Justice Hinkson Reasons for Judgment Counsel for the Plaintiffs: Counsel for the Defendants: Adamson, Aumbus, Bjornson, Brett, Gome, Oertel, Mullin, Reville, A. Robinson, Ruble, and Smallwood Place and Date of Hearing: Place and Date of Judgment: T.A. Mason and S.A. Bevan C.J. Boies Parker and J.L. MacAdam Victoria, B.C. March 11, 14 and 15, 2016 Victoria, B.C. April 5, 2016

2 British Columbia v. Adamson Page 2 Introduction [1] The first named plaintiff, Her Majesty the Queen in right of the Province of British Columbia (the Province ), is the owner of the lands and premises of the Victoria Law Courts at 850 Burdett Avenue, Victoria, British Columbia, occupying the city block bounded by Blanshard Street on the west, Quadra Street on the east, Courtney Street on the north and Burdett Avenue on the south (the Courthouse Property ). These lands are more particularly described as Lot 1, Section 88, Victoria District Plan 12886, Parcel Identifier [2] The second named plaintiff, the Attorney General of British Columbia, is the legal advisor to the Lieutenant Governor of British Columbia, and the legal member of the Executive Council for British Columbia. She asserts parens patriae jurisdiction to apply to this Court for injunctive relief based upon private law causes of action in trespass, under the Trespass Act, R.S.B.C. 1996, c. 462 and nuisance, public nuisance and breaches of public law, and to preserve the rule of law, pursuant to the Attorney General Act, R.S.B.C. 1996, c. 22. [3] At least some of the named defendants and other individuals have been camping at the green space that occupies roughly the eastern third of the Courthouse Property (the Courthouse Green Space ) since in or about November [4] On February 29, 2016, the plaintiffs filed a notice of civil claim seeking an injunction to restrain the defendants from trespassing upon the Courthouse Green Space and from continuing various activities thereon. [5] Although service of all of the named defendants may be incomplete, the plaintiffs nonetheless seek an interlocutory injunction in the terms set out in Appendix A to these reasons for judgment.

3 British Columbia v. Adamson Page 3 Background The Courthouse Property [6] The Courthouse Property, including the Courthouse Green Space, was formerly held by the British Columbia Buildings Corporation and is administered land under the Public Agency Accommodation Act, S.B.C. 2006, c. 7. As such, no provision of the Land Act, R.S.B.C. 1996, c. 245, except s. 50, applies to the Courthouse Property. Nor is the Courthouse Green Space a park within the meaning of the Parks Regulation Bylaw passed by the City of Victoria under the Community Charter, S.B.C. 2003, c. 26. [7] The Province, as landowner, has permitted members of the public to enter upon and use the Courthouse Green Space for recreation activities, but has never formally authorized the establishment of an encampment at the site. The Encampment [8] On numerous dates since about November 2015, the defendants have erected and maintained tents and other structures, stored objects in and around the structures, and inhabited the structures, thereby establishing an encampment that occupies most or all of the area in the Courthouse Green Space (the Encampment, referred to in some submissions as SuperIntent City, SIC, or Tent City ), to the exclusion of most other uses. The defendants have maintained the Encampment throughout the day and night, without limiting their activities to overnight sheltering. [9] The plaintiffs contend that the Encampment has become unsustainable and unacceptable, but also state that following a brief period of some weeks to permit remediation of the site, they will not seek to enjoin overnight sheltering by homeless individuals on the Courthouse Green Space between the hours of 7:00 pm and 7:00 am. [10] The plaintiffs contend that alternative accommodation is available to house homeless individuals who are currently living in the Encampment. Since December 2015, the Province, through the British Columbia Housing Management Commission, has funded the following new facilities and programs in the City of Victoria:

4 British Columbia v. Adamson Page 4 a. three new 24/7 transitional housing facilities providing accommodation for a total of 128 homeless individuals, including indoor and outdoor tent spaces; b. 75 new nighttime shelter spaces for homeless individuals; and c. 40 new rent supplements specifically targeted to homeless persons from the Encampment. [11] Some of the defendants remaining at the Courthouse Green Space who are homeless have declined to move to these new spaces despite efforts to assist them with relocation. [12] On January 8, 2016, representatives of the Province read aloud, distributed, and posted at the Courthouse Green Space a notice requesting the defendants and others camping there to leave the Courthouse Property. Some of the campers left in response to the January 8, 2016 notice, but most did not. [13] On February 4, 2016, representatives of the Province read aloud, distributed, and posted at the Courthouse Green Space a notice under s. 4 of the Trespass Act to require all camping at the Courthouse Green Space to cease and all tents and other personal property to be removed by no later than February 25, [14] By February 26, 2016, only some 50 of the Encampment occupants had apparently removed themselves and their belongings from the Courthouse Green Space, while a significant number of individuals and approximately 60 to 70 structures remained in the Encampment. The Encampment occupants or some of them - who are continuing to maintain the Encampment despite the February 25, 2016 deadline - threaten and intend to continue to reside in the Encampment unless they are restrained from doing so. [15] On February 27, 2016, the Encampment occupants were issued an order pursuant to s. 22 of the Fire Services Act, R.S.B.C. 1996, c. 144 to eliminate the fire hazards at the Encampment.

5 British Columbia v. Adamson Page 5 Discussion [16] The plaintiffs contend that the Attorney General of British Columbia has jurisdiction under statute to seek an interlocutory injunction based on the alleged interference with court access, the effects of the Encampment that amount to public nuisance and breaches of the public law, or in the alternative, the Province s rights as landowner. [17] While the Attorney General s jurisdiction is undisputed by the defendants, the parties disagree as to the test to be applied on this application for interim relief. Evidentiary Issues [18] I am not persuaded that the admissible evidence before me on this application supports many of the plaintiffs allegations. As recently confirmed by the Court of Appeal in Premium Weatherstripping Inc. v. Ghassemi, 2016 BCCA 20 at paras. 5 8: [5] Rule 22-2 of the Supreme Court Rules limits the evidence in an affidavit to that which is admissible at trial, unless excepted, in these terms: (12) Subject to subrule (13), an affidavit must state only what a person swearing or affirming the affidavit would be permitted to state in evidence at a trial. (13) An affidavit may contain statements as to the information and belief of the person swearing or affirming the affidavit, if (a) the source of the information and belief is given, and (b) the affidavit is made (i) in respect of an application that does not seek a final order, or (ii) by leave of the court under Rule 12-5 (71) (a) or 22-1 (4) (e). [6] By these sub-rules, hearsay evidence (not permitted at trial) generally may not be included in an affidavit unless sub-rule (13) is met. An interlocutory injunction, of course comes within the words of sub-rule (13), "an application that does not seek a final order". [7] [An] interlocutory injunction is well understood to be a special sort of nonfinal order in that, by its very nature, it restricts the freedom of the party against whom it is made, without the applicant having had to prove any allegation beyond the standard of an arguable case. An interlocutory injunction often becomes the entire remedy in an action, and can endure for a very long time unless temporal limits are placed upon it. For that reason, assiduous care in preparation of the application is the standard, including strict compliance with the requirements for

6 British Columbia v. Adamson Page 6 all hearsay evidence that would not be permitted to be stated at trial to be on information and belief, with the source identified. There is no room in interlocutory injunction practice for relaxation of that requirement, in my view. [8] In this case the affidavits did not comply with this requirement; the order appealed must be set aside as having been obtained on the basis of inadmissible evidence. [19] I am troubled by the form of many of the affidavits tendered by the defendants. For example, the individual who took the affidavit of Hugh Adamson, one of the named defendants in this action, inappropriately described his March 7, 2016 affidavit to be sworn (or affirmed). A number of other affidavits filed by the defendants were also in this form. This improper form of jurat caused me pause in considering the evidence contained in such affidavits, but I have decided that the fault for the form of the jurat lies with counsel for the defendants, rather than with the deponents. As no objection to the form of jurat was taken by counsel for the plaintiffs, I will consider the evidence in these forms of affidavits, rather than force counsel for the defendants to go through the exercise of having the affidavits properly commissioned. I would not do so if this were not an interim application. [20] However, I am unable to give any weight to the evidence in the affidavit affirmed by a person identified only as D.A.. D.A. indicated that he did not want to give his full name because he feared reprisal from the government. Nevertheless, like witnesses in a trial, affiants must either obtain an order from the Court to identify themselves by initials, which D.A. did not do, or identify themselves by full name for their evidence to be considered admissible in any court proceedings. Legal Framework [21] The traditional three-part test for granting an injunction was set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at [RJR-MacDonald]: a) Has the applicant demonstrated there is a fair question to be tried? b) Will the applicant suffer irreparable harm if an injunction is not granted? and

7 British Columbia v. Adamson Page 7 c) Does the balance of convenience favour the granting of an injunction? [22] The Province argues that, for a number of reasons, the RJR-MacDonald framework does not apply in this case. In the alternative, the Province contends that for an injunction to be granted in these circumstances, the plaintiffs must only satisfy the first criterion of the RJR-MacDonald test. 1. Does the RJR-MacDonald test apply? [23] The plaintiffs contend that the three-part test in RJR-MacDonald does not apply to trespass cases. The plaintiffs argue that once they have shown that their property rights are being wrongfully interfered with, and the defendants intend to continue to commit the wrong, they have established their entitlement to an injunction. [24] Some support for this argument can be found in the reasons for judgment of Madam Justice Allen in The Sol Sante Club v. Biefeld et al, 2005 BCSC 1908 at paras [Sol Sante Club]: [18] However, the general test [in RJR Macdonald] does not apply in trespass cases. Many cases support the proposition that once an applicant establishes a prima facie case that his or her property rights are being wrongfully interfered with by another and the other party intends to continue the wrong, an injunction should issue without regard to the remaining parts of the general test. [19] Two such cases are Terbasket and Harmony Co-ordination Services Limited, (2003), 28 C.P.C. (5th) 364, and Paul et al v. Canadian Pacific Limited, (1983), 2 D.L.R. (4th) 22, where a temporary injunction was imposed and an appeal to the Supreme Court of Canada, [1988] 2 S.C.R. 654, resulted in a permanent injunction being imposed. [20] In my opinion, there is a robust triable issue as to whether the Board of Directors can terminate Mr. Grenier's probationary status or whether his membership can only be terminated by a special resolution of the members. [25] But as Allen J. declined to follow the exception to the general test, Sol Sante Club is of limited assistance. [26] Nor is this a case like Board of School Trustees of School District No. 27 (Cariboo-Chilcotin) v. Van Osch et al, 2004 BCSC 1827, where the landowner school district proved that it was unable to access its property because of the actions of the

8 British Columbia v. Adamson Page 8 defendants. In the present case, it cannot be said that the defendants have no right to the use of the Courthouse Green Space. Indeed, as I have discussed above, the plaintiffs concede that following a brief period of some weeks to permit remediation of the site, they will not seek to enjoin overnight sheltering on the Courthouse Green Space by homeless individuals. [27] Even if the trespass exception to RJR-MacDonald applies in this case, the plaintiffs still bear the burden of establishing that the defendants are wrongfully interfering with the Province s property rights. In that regard, the Province alleges that the defendants have violated s. 4 of the Trespass Act. Sections 4 and 4.1 of the Trespass Act provide the following: 4. (1) Subject to section 4.1, a person commits an offence if the person does any of the following: (a) enters premises that are enclosed land; (b) enters premises after the person has had notice from an occupier of the premises or an authorized person that the entry is prohibited; (c) engages in activity on or in premises after the person has had notice from an occupier of the premises or an authorized person that the activity is prohibited. (2) A person found on or in premises that are enclosed land is presumed not to have the consent of an occupier or an authorized person to be there. (3) Subject to section 4.1, a person who has been directed, either orally or in writing, by an occupier of premises or an authorized person to (a) leave the premises, or (b) stop engaging in an activity on or in the premises, commits an offence if the person (c) does not leave the premises or stop the activity, as applicable, as soon as practicable after receiving the direction, or (d) re-enters the premises or resumes the activity on or in the premises A person may not be convicted of an offence under section 4 in relation to premises if the person's action or inaction, as applicable to the offence, was with (a) the consent of an occupier of the premises or an authorized person,

9 British Columbia v. Adamson Page 9 (b) other lawful authority, or (c) colour of right. [28] The Province asserts that in maintaining the Encampment despite the February 25, 2016 deadline, the defendants, or some of them, have been openly and continuously committing the offence of trespass defined in s. 4 of the Trespass Act. Because of the scale on which the offence is being committed and the densely populated nature of the Encampment, law enforcement officials have been unable or unwilling to exercise the power of arrest under s. 10 of the Trespass Act. [29] But s. 4 of the Trespass Act is, as set out above, subject to s. 4.1, which exempts from conviction those who act on other lawful authority, or have some colour of right, which the defendants here contend that they enjoy. That is not an issue to be resolved on this application for interim relief. [30] If the trespass exception to RJR-MacDonald does not apply, the plaintiffs further assert that they are seeking a statutory remedy as opposed to an equitable one, and that therefore their application to restrain the continued breach of public law should result in the injunctive relief that they seek, absent exceptional circumstances. [31] The alternative test advocated for by the plaintiffs comes from the Court of Appeal s decision in Maple Ridge (District) v. Thornhill Aggregates Ltd. (1998), 109 B.C.A.C. 188, leave to appeal to SCC ref d [1998] S.C.C.A. No. 407 [Thornhill]. Under this two-part test, an injunction is granted once it has been established that there has been a breach of a bylaw and there are no exceptional circumstances that should prevent enforcement of the bylaw. [32] Madam Justice Duncan considered the question of whether to follow RJR- MacDonald or Thornhill in very similar circumstances in Vancouver Board of Parks and Recreation v. Williams, 2014 BCSC 1926 [Williams]. In that case homeless individuals erected 200 tents in Oppenheimer Park, which was closed from 10:00 p.m. to 6:00 a.m., without permission from the City of Vancouver. The Vancouver Board of Parks and

10 British Columbia v. Adamson Page 10 Recreation sought an interlocutory injunction requiring the individuals who were camping in Oppenheimer Park to remove all tents and other structures from the park. [33] Duncan J. found that the City of Vancouver had canceled several community events because of the presence of the tents, that there were numerous fire hazards, and that many fights and incidents of public drunkenness had taken place. She also found that policing costs attributable to the park were close to $100,000, and that outreach workers estimated that about 150 people were living in the park. [34] At paras , Duncan J. considered the test to be applied for the injunction sought, and reviewed the tests that had been applied in similar cases concerning encampments of homeless persons in municipal parks not only in Vancouver and Victoria, but in other British Columbia cities. Ultimately, at para. 60, she concluded that she should follow RJR-MacDonald in the circumstances: [60] I am inclined to the view that the RJR-MacDonald test is the appropriate one to be applied in the circumstances before me. The evolution of the type of litigation in question here favours an approach which takes into account Charter issues rather than the consideration of a pure statutory breach approach to injunctive relief. [35] This Court has repeatedly opined that the Thornhill analysis is not appropriate in cases where Charter issues are raised: Williams at para. 60; Abbotsford (City) v. Shantz (20 December 2013), New Westminster S at para. 20 (B.C.S.C.); Vancouver Parks Board v. Mickelson, 2003 BCSC 1271 at para. 20. I therefore agree with Duncan J. s analysis and her view that RJR-MacDonald is the proper test to follow in applications such as this one. 2. Must the plaintiffs satisfy all of the RJR-MacDonald criteria? [36] The plaintiffs assert that while the Court has occasionally been reluctant to grant injunctive relief where other avenues of relief are open to the Attorney General, once a clear breach of public law or ongoing flagrant violation of public rights is established, the Court will not require any further steps in the analysis, or if applying the ordinary test for injunctive relief, will consider that the elements of irreparable harm and the balance of convenience are satisfied. In support of this contention, the plaintiffs rely upon three

11 British Columbia v. Adamson Page 11 authorities: Attorney General for Ontario v. Grabarchuck et al, [1976] O.J. No (H. Ct. J. (Div. Ct.)) [Grabarchuck]; In the Matter of Access to the Courts of Justice, 2011 BCSC 1815 [The Matter of Access]; and C. Jones, The Attorney General s Standing to Seek Relief in the Public Interest; The Evolving Doctrine of Parens Patriae (2007) 86 Can. Bar Rev [37] In Grabarchuck, the Ontario Divisional Court dealt with an application by the Attorney-General for Ontario to enjoin the defendants from carrying on business without a licence contrary to the provisions of the Public Commercial Vehicles Act, R.S.O. 1970, c Mr. Justice Reid found that there was little room for doubt about the material facts of the case, and no doubt that defendants had persistently flouted the law. At para. 33, Reid J. observed: [33] In my opinion, there is no basis for the application of the usual criteria. If, however, they were applicable I would think that the justice and convenience of the matter lie on the Attorney-General's side. He has a strong prima facie case. If irreparable damage to the public interest must be shown I agree with and apply the following. In Attorney-General v. Harris, [1961] 1 Q.B. 74 at p. 95, Pearce, L.J., observed:... a breach with impunity by one citizen leads to a breach by other citizens, or to a general feeling that the law is unjustly partial to those who have the persistence to flout it. [38] Thus, despite the Court s apparent rejection of the application of the usual criteria for injunctive relief, the case was ultimately decided by the application of those very criteria. [39] Moreover, the application of Grabarchuk was restricted by McPherson J., as he then was in, Ontario (Attorney General) v. Ontario Teacher s Federation, [1997] O.J. No (Ct. J. (Gen. Div.)) where he stated at paras that: [34] In Bear Island O'Leary J., and in Grabarchuk Reid J., both used the word 'flout' to describe the defendants' conduct, and linked the flouting of the law to their conclusion that the Attorney General need not demonstrate irreparable harm in order to obtain an interlocutory injunction. The New Shorter Oxford English Dictionary defines 'flout' as follows, at p. 981: flout: (verb) Treat or behave with disdain; mock; jeer; express contempt (for) by action or speech. Now usually denoting indirect expression: openly disregard (a law, an opinion, etc.)

12 British Columbia v. Adamson Page 12 [35] The conduct of the teachers does not, in my view, come close to this definition of flout, or to the conduct of the defendants in Bear Island Foundation or Grabarchuk. The teachers' decision was not made with disdain. They had never engaged in a province-wide strike before last week. The record demonstrates that they made their decision in a careful, concerned and reluctant fashion. Moreover, there is not a hint of mocking or jeering in their conduct since the strike began. The strike has been remarkably peaceful, especially in light of the fact that approximately 126,000 teachers are involved. Finally, the teachers do not believe that they are openly disregarding the law. As I described above, their legal position is that they are engaged in a lawful strike. [40] The Matter of Access was an application by the Attorney General for an ex parte injunction to restore and preserve unimpeded public access to the Vancouver Law Courts and courthouses in the province, and to prevent any interference with the operation of the courts. As I will explain below, the plaintiffs concede that there is no evidence in this case that public access to the Victoria Law Courts has been impeded. As Associate Chief Justice MacKenzie pointed out in The Matter of Access, at para. 26: To use the Court's jurisdiction to issue an ex parte injunction to control activity on public lands that may not happen is speculative. There already exists a remedy for trespass, so such speculative relief is not required. [41] Those parts of the Canadian Bar Review article relied upon by the plaintiffs essentially summarize the principles set out in the Grabarchuk and The Matter of Access. [42] The breaches of public law alleged by the plaintiffs include interference with those working and living near the Courthouse Green Space; interference with the rights of the general public to the use and enjoyment of that green space, unaffected by inconvenience, discomfort or other forms of interference; and breaches of s. 4 of the Trespass Act and s. 22 of the Fire Services Act. [43] As I discussed above, I am not satisfied that the plaintiffs have established a clear breach of the Trespass Act. I have also rejected their submissions that the statutory breaches alleged in this case justify a departure from the application of the full RJR-MacDonald framework.

13 British Columbia v. Adamson Page 13 [44] The remaining breaches of public law alleged by the plaintiffs essentially amount to claims of public nuisance. The doctrine of public nuisance has been explained both by the Court of Appeal and the Supreme Court of Canada. In Susan Heyes Inc. (Hazel & Co.) v. South Coast B.C. Transportation Authority, 2011 BCCA 77 at para. 39, Madam Justice Neilson, for the Court, commented on the appeal from the finding that means of construction of the Canada Line tunnel through Vancouver substantially interfered with Hazel & Co.'s use and enjoyment of its premises, and that the extent of the interference was sufficiently unreasonable to constitute a nuisance. The trial judge found that the nature, severity and duration of the impact on Hazel & Co. resulting from cut and cover construction outweighed the social or public utility of that construction. Neilson J.A. held: [39] In considering the factors relevant to nuisance, the court must recognize the inevitability of competing interests and the need for give and take. As Professor Klar observes in Tort Law, 4th ed. (Toronto: Carswell, 2008) at 715, nuisance "is principally concerned with regulating the conflicting uses of land which invariably arise in an increasingly urbanized and crowded society". A certain degree of inconvenience and interference is inevitable to ensure peaceful co-existence. The task is to determine at what point the process of give and take becomes sufficiently unbalanced to create unreasonable harm that is deserving of compensation: Mandrake Management Consultants Ltd. v. Toronto Transit Commission (1993), 102 D.L.R. (4th) 12, 62 O.A.C. 202 at (C.A.). [Emphasis added.] [45] In Ryan v. Victoria (City), [1999] 1 S.C.R. 201 at paras , Mr. Justice Major, for a unanimous Court, stated: [52] The doctrine of public nuisance appears as a poorly understood area of the law. "A public nuisance has been defined as any activity which unreasonably interferes with the public's interest in questions of health, safety, morality, comfort or convenience": see Klar, supra, at p Essentially, "[t]he conduct complained of must amount to... an attack upon the rights of the public generally to live their lives unaffected by inconvenience, discomfort or other forms of interference": See G. H. L. Fridman, The Law of Torts in Canada, vol. I (1989), at p An individual may bring a private action in public nuisance by pleading and proving special damage. See, e.g., Chessie v. J. D. Irving Ltd. (1982), 22 C.C.L.T. 89 (N.B.C.A.). Such actions commonly involve allegations of unreasonable interference with a public right of way, such as a street or highway. See ibid., at p. 94. [53] Whether or not a particular activity constitutes a public nuisance is a question of fact. Many factors may be considered, including the inconvenience

14 British Columbia v. Adamson Page 14 caused by the activity, the difficulty involved in lessening or avoiding the risk, the utility of the activity, the general practice of others, and the character of the neighbourhood. See Chessie, supra, at p. 94. The trial judge found, at p. 206, that "the configuration and design of the railway tracks on Store Street constituted an unreasonable interference to the public of its right of access". He noted that Store Street was a mixed retail, industrial, and commercial area, and that the Railways should have foreseen the hazard posed by the flangeways to riders of two-wheeled vehicles. He found, at p. 207, that the cost of that hazard should be borne by the Railways as a matter of policy: In this case, the defendant Railways clearly installed that particular flange-rail system without regard to vehicular traffic. It was chosen because it cost less, and it was longer lasting and better suited to the needs of the rail traffic. However, the result of this choice of flange-rail, which created an almost 4-inch gap, was to effectively increase the risks to vehicle traffic. The cost of that increased risk to others must fall on the defendant Railways. It is a "cost of running the system." [Emphasis added.] [46] The Province asserts that from November 2015 to the present time, the defendants, by maintaining the Encampment, have damaged the Courthouse Green Space, impeded operations at the Victoria Law Courts, affected the quiet enjoyment of individuals residing in the neighborhood, disrupted the operation of businesses in the neighborhood, and created health and safety hazards for themselves and members of the surrounding community. Particulars of the nuisance and breaches of public law are alleged to include: a. Impeding or dissuading the public use of the Courthouse building and interfering with access to justice services at the Justice Access Centre located within the Victoria Law Courts building. Members of the public are currently reluctant to attend the Courthouse precinct; b. displacing other members of the public, including Courthouse staff and participants in legal proceedings at the Victoria Law Courts, from use of the Courthouse Green Space for respite and recreation; c. impeding or dissuading public use of sidewalks adjacent to the Courthouse Green Space; d. denuding the lawn and altering the grade profile of the ground at the Courthouse Green Space such that the site will no longer usable for the enjoyment of the public as a green space unless and until significant remediation steps are taken; e. impeding access to the Justice Access Centre located within the Victoria Law Courts building;

15 British Columbia v. Adamson Page 15 f. burning wood, garbage, and other substances in open fires, creating smoke that has entered nearby buildings and sickened individuals in those buildings; g. creating fire hazards, including burning candles within tents and storing combustible materials within the Encampment; h. defecating on the ground at locations in and around the Encampment, including at locations at or in front of entrances to the Victoria Law Courts; i. depositing garbage and debris in and around the Encampment, including biohazardous materials such as used needles and syringes; j. engaging in criminal activity in and around the Encampment, including assaults and drug trafficking; and k. creating noise, disturbance, and a general air of discomfort that has affected residents and businesses in the neighbourhood, as well as discouraged or impeded members of the public from seeking access to justice within the courthouse building. [47] I do not propose to deal with each of the allegations enumerated above individually; however, I will address the substance of the allegations in the reasons that follow. [48] The Province further asserts that by reason of the nuisance, which it contends is substantial and unreasonable, the Province as landowner, together with a cross-section of the public residing, working, accessing services, or carrying on business in the surrounding area, have suffered annoyance, discomfort, loss of enjoyment, damage, and expense. [49] The Province contends that ongoing measures required to mitigate sanitation and public order issues at the Encampment have consumed significant public resources. The plaintiffs assert that the strain on public resources that the Encampment has created at its location in close proximity to the Victoria Law Courts may detract from the resources available for operation of the Victoria Law Courts and ultimately affect the public interest in access to justice. [50] In Abbotsford (City) v. Shantz, 2015 BCSC 1909 [Shantz] at para. 174, I found that there is no right to housing under the Charter. Despite the lack of any such Charter right, the other rights discussed in Shantz must be considered on this application.

16 British Columbia v. Adamson Page 16 Weighing, as I must, the inconvenience caused by the defendants activities, the difficulty involved in lessening or avoiding the risk to the defendants, the utility of their activities, the general practice of others, and the character of the neighbourhood, I am unable to find that a public nuisance has been clearly established. [51] It is clear that many of the plaintiff s factual assertions are contested by the defendants. I am unable to resolve many of these factual disagreements on affidavit evidence alone. [52] I am not persuaded that the plaintiffs have established a basis for the application of an exception to the general test in RJR-Macdonald, and I therefore turn to the three questions to be addressed using that test. Application of the Legal Framework 1. Has the applicant demonstrated there is a fair question to be tried? [53] I am satisfied that the plaintiffs have established that their pleadings and the evidence on this application raise more than one fair question, including the question of the application of the Trespass Act; the question of the entitlement and need for the use of the Courthouse Green Space by members of the public other than the homeless; and the questions of health, general safety, fire safety, and the safety of the public who are attempting to deal with the encampment. 2. Will the applicant suffer irreparable harm if an injunction is not granted? [54] The definition of irreparable harm is set out by the Supreme Court of Canada in RJR-MacDonald at 341: "Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able to collect damages, although it may be a relevant consideration (Hubbard v. Pitt, [1976] Q.B. 142 (C.A.)).

17 British Columbia v. Adamson Page 17 [55] While I accept that the Encampment is considered by many to be an eyesore at best, much of the harm complained of by the plaintiffs has now been done. [56] The plaintiffs provided affidavits setting out the ongoing cost and expense associated with the Encampment. One such affidavit was provided by Brian Cooper, a superintendent of property services in the Facilities Management Services Branch of the Real Property Division of the Ministry of Technology, Innovation and Citizens Services ( MTICS ). In his affidavit affirmed February 26, 2016, Mr. Cooper deposed that, as a result of the Encampment, MTICS has had to engage additional security staff and arrange for additional sanitation services to be provided at the Courthouse Property. [57] Mr. Cooper further attested that the Encampment has caused significant damage to the Courthouse Green Space lawn, and possibly to the underlying irrigation system. He attested that MTICS had recently estimated that it would cost $300,000 to $350,000 to clean up and rehabilitate the site. [58] Graeme Sykes is a real estate manager in the Asset Management Branch of the Real Property Division of MTICS. In his affidavit sworn February 29, 2016, Mr. Sykes deposed that, since 2013 or 2014, MTICS has been developing plans to upgrade the electrical service at the Courthouse Property. The timeline of this project requires contractors with BC Hydro to have access to a large section of the Courthouse Green Space in summer 2016 so that they can install new transformers for the Courthouse Property. Mr. Sykes has been informed and believes that if the project proceeds while the Encampment remains standing, the contractors will require MTICS to provide or pay for additional security services for their trucks and equipment. [59] The plaintiffs permitted the Encampment to exist for many months before seeking injunctive relief. The expenses detailed above can all be quantified. While I accept without reservation the reality that the expenses will almost certainly be unrecoverable from the defendants, I note that the Supreme Court of Canada remarked in RJR- MacDonald that one party s impecuniosity does not automatically decide the application in the opposing party s favour. The fact remains that most of the damages alleged by the plaintiffs have already crystallized. Any further costs or damage that would be

18 British Columbia v. Adamson Page 18 occasioned by the ongoing presence of the Encampment would, as I will discuss below, simply take place somewhere else in the City or Victoria if the injunction sought were issued. 3. Does the balance of convenience favour the granting of an injunction? [60] Even if the damages alleged by the plaintiffs satisfy the criterion of irreparable harm, I must still consider whether the balance of convenience favours granting the remedy that the Province seeks. [61] The plaintiffs submit that the balance of convenience favours granting the injunction because of the health and safety concerns that they say are caused by the Encampment. The plaintiffs say that the Encampment results in the increased presence of biohazard waste and garbage in the area; prevents other members of the public from using the Courthouse Green Space and discourages them from using nearby resources; creates fire safety concerns; and results in an increased need for policing resources to be deployed in the area. [62] On the other hand, the defendants contend that there are not enough shelter spaces to house Victoria s homeless population. They say that if they are removed from the Courthouse Green Space, the Encampment s homeless residents will have to camp somewhere else, and could very well be subject to greater health and safety risks as a result. The defendants also submit that remaining at the Encampment has permitted them to develop a community, and to begin to build positive relationships with authorities and others in the surrounding area. [63] I will consider the various points raised by the parties in the sections below. a) The Number of Homeless and the Number of Beds and Shelters in Victoria [64] These numbers are far from clear. [65] To provide estimates of the number of available beds and shelters in the City of Victoria, the Province filed affidavits from Roger Butcher, the regional director at the

19 British Columbia v. Adamson Page 19 offices of B.C. Housing in Victoria. In his affidavit sworn February 26, 2016, he deposed that there are approximately temporary housing spaces available in the City of Victoria for the homeless or those at risk of homelessness. The number and type of spaces available varies depending on weather conditions and the time of year. Some spaces are only made available for nighttime sheltering during extreme weather conditions and/or the winter months (November to March). [66] Mr. Butcher also attested to the new shelter options that have recently been made available by the Province. He deposed that the My Place transitional housing shelter opened on January 5, 2016, and is scheduled to continue operating until April 30, The Mount Edwards transitional housing shelter opened on February 23, 2016, and will provide 38 spaces for a minimum of 12 months. The View Royal shelter has indoor and outdoor facilities, and will operate for six months. Its 22 outdoor spaces were opened on February 23, 2016, and Mr. Butcher attested that its 28 indoor spaces were scheduled to open in the next week. Mr. Butcher attested that it might be possible to keep some of the winter-only shelter spaces open beyond their originally scheduled closing dates. [67] The defendants relied upon a report prepared by Dr. Bernadette M. Pauly, an Associate Professor in the School of Nursing at the University of Victoria and scientist at the Centre for Addictive Research in British Columbia. In her report, Dr. Pauly commented on what in her view are the causes of homelessness and its prevalence in Victoria, estimating that there were as many as 1725 homeless individuals in the city in the years 2014/2015. She reported that there are presently up to 140 transitional beds in addition to the previously available 376 transitional beds and 146 transitional units available in Greater Victoria, as well as 320 shelter beds in winter months, which will be reduced to 160 by March 31 April [68] In his subsequent affidavit sworn March 10, 2016, Mr. Butcher deposed that he had been in contact with the various organizations that were providing additional transitional housing at the My Place, Mount Edwards, and View Royal shelters. Mr. Butcher attested that he had been informed that the majority of spaces were now open

20 British Columbia v. Adamson Page 20 at those shelters, but some were still under renovation. He was informed that most of the individuals staying at the Mount Edwards transitional housing had come from the Encampment, and not from other locations. [69] Mr. Butcher challenged Dr. Pauly s estimates of the number of homeless individuals in Victoria, saying that the most recent count of the homeless in Victoria had identified only individuals. Mr. Butcher also attested that he was working on preparing a budget for keeping the transitional spaces open for longer periods than originally scheduled. [70] Mr. Butcher further deposed that the three new transitional housing shelters were low-barrier, in that they would admit active drug users and permit them to continue using their drug of choice while staying in the shelter. According to Mr. Butcher, the shelters operate on a harm reduction model and provide health and addictions services to residents with addictions. [71] Dr. Pauly responded to these further affidavits of Mr. Butcher with her own affidavit sworn (or affirmed) March 13, In that affidavit, she deposed that she was a member of the team that conducted the homeless count referred to by Mr. Butcher, for which the data has not yet been fully entered, analyzed, or released. She thus attested that the numbers provided by Mr. Butcher were inaccurate, and maintained that her best estimate of the number of homeless in Victoria was presently individuals. [72] Both Dr. Pauly and Mr. Butcher attested to the inherent difficulty in determining the number of homeless individuals at any point in time, given the fluidity of the state of homelessness. Nevertheless, it is clear that the residents of the Encampment are not the only individuals who are homeless in Victoria, nor are they the only individuals competing for the limited bed and shelter space in Victoria. There are numbers of homeless individuals in Victoria that do not live in the Encampment. [73] It is unnecessary for me to resolve the actual numbers of homeless and the numbers of beds and shelters presently available to them. I am satisfied that the

21 British Columbia v. Adamson Page 21 number of homeless in Victoria continues to exceed the available beds and shelters in the city by a considerable amount, and this disparity will only worsen when some of the presently available beds are closed. b) Public Use of the Courthouse Green Space and its Environs [74] The plaintiffs concede that the Encampment has not directly impeded access to those portions of the Victoria Law Courts where the Registry and the courtrooms are located. They also concede that there is no evidence that the Encampment has directly impeded access to court services within the Victoria Law Courts. [75] In his affidavit sworn February 29, 2016, Mr. Sykes deposed that, to his knowledge, the Courthouse Green Space had always been open to the public to enjoy for aesthetic and recreational purposes. In addition to activities such as children s play and fitness classes, Mr. Sykes attested that he has seen individuals using the Courthouse Green Space as a place to take a break during court proceedings. In his view, the Courthouse Green Space provides a restful area where participants involved in stressful legal proceedings can find respite. Mr. Sykes has also been informed that the Courthouse Green Space is used as an emergency muster location for workers in nearby office buildings. [76] Don Allen and his wife Laurie are the resident managers of an apartment building across the street from the Courthouse Green Space. Each provided affidavits deposing to their feelings of vulnerability due to the presence of the relatively permanent structures that have been erected and maintained on the Courthouse Green Space since November [77] Mrs. Allen deposed to her observation that the Courthouse Green Space had previously been used regularly by members of the public for a variety of activities including yoga, children s play activities, students lying on the grass to read, and badminton. She also deposed that the space was used as a pathway for tenants of her apartment walking to the YMCA on Courtney Street.

22 British Columbia v. Adamson Page 22 [78] Peter Wharton is an inspector with the British Columbia Sheriff Services and has worked out of the Victoria Courthouse for the past 8 years. He and his colleagues provide for the safety and security of the courts throughout British Columbia and for the participants in the judicial system. In his affidavit sworn February 29, 2016, Inspector Wharton deposed that before the development of the Encampment, there had occasionally been individuals sleeping in the Courthouse Green Space, almost all of whom had readily packed up their belongings and moved along when requested to do so. [79] Inspector Wharton further stated that throughout 2015, the number of campers in the Courthouse Green Space gradually grew and the presence of the Encampment increasingly gave rise to security concerns. To address these concerns, Inspector Wharton attempted to liaise with the Victoria Police Department, but the Encampment continued to grow. He deposed that, despite the passing of the Province s February 25, 2016 deadline, the sheriffs did not have the resources to make arrests pursuant to the Trespass Act and were not equipped to deal with a situation as large as the one created by the Encampment. [80] Nicola Storr is the office manager at the Victoria Justice Access Centre. The centre is located on the Courthouse Property, and its entrance faces the Courthouse Green Space. The Centre provides free or low cost legal information, services, and referrals for the public with respect to family and civil law issues, with certain services provided exclusively to individuals with low incomes. [81] Ms. Storr has maintained a log of incidents, staff concerns, and client complaints respecting the camp on the Courthouse Green Space since November In her affidavit sworn February 24, 2016, Ms. Storr attested to several alleged incidents, citing them as examples of how that the presence of the Encampment had impeded access to the centre. [82] The four examples provided by Ms. Storr, all based on hearsay, and in three of the four cases, unattributed double hearsay, primarily amount to minor inconveniences, none of which appear to have actually prevented any clients or staff members from

23 British Columbia v. Adamson Page 23 accessing the centre. The one example that was not based on unattributed double hearsay involved an individual who may or may not have been from the Encampment sleeping in the centre s accessible doorway. The person moved along once requested to do so by the sheriffs and security personnel. [83] The evidence tendered by the plaintiffs does not establish that public access to the Justice Access Centre has been impeded by the existence of the Encampment. However, I accept that, for some users of the Courthouse Green Space, the Encampment has diminished its aesthetic and recreational value, and will weigh this factor in my analysis of the balance of convenience. c) Health and Safety [84] In her affidavit, Ms. Storr also described health and safety concerns as follows: 8. A number of incidents have raised health and safety concerns for our clients and staff. These include: b. Garbage. On or around 15 December 2015, I observed that the large metal garbage container in the parking lot was full and garbage was spilling out. On or around 29 December 2015, I observed that access to the outside stairway from the parking lot leading down to Courtenay Street was nearly blocked with garbage and that garbage was strewn in the parking lot. On 16 February 2016, I observed that even though the garbage containers in the parking lot were not quite full, garbage was strewn in the surrounding parking lot and nearby bushes, c. Used condoms. On or around 20 January 2016, Denise Neigel, a family justice counsellor with the Victoria Justice Access Centre, advised me, and I do verily believe, that she had observed used condoms on the outside stairway leading down to Courtenay Street. I called Workplace Solutions Incorporated to dispose of the condoms. [85] Ms. Storr deposed to other incidents involving the presence of syringes and human feces, however, these incidents were based on unattributed hearsay and double hearsay.